Sutherland Shire Council v Nustas

Land and Environment Court (NSW)|2004-11-03|Before: Pain J

CITATION : Sutherland Shire Council v Nustas [2004] NSWLEC 608 PROSECUTOR: PARTIES : Sutherland Shire Council DEFENDANT: Simon Shibli Nustas FILE NUMBER(S) : 50122 of 2003 CORAM: Pain J KEY ISSUES: Prosecution :- Plea of guilty - Breach of consent conditions resulting in damage to trees Criminal Procedure Act 1986, s 253 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 21A, s 22 Environmental Planning and Assessment Act 1979, s 125(1), s 126(3) Land and Environment Court Act 1979, s 41 Council of Camden v Tax [2004] NSWLEC 448; CASES CITED: Ku-ring-gai Council v Nettcorp Pty Limited [2003] NSWLEC 203; R v Thompson; R v Houlton (2000) 49 NSWLR 383 DATES OF HEARING: 17/08/2004 01/11/2004 DATE OF JUDGMENT: 11/03/2004

PROSECUTOR: Ms S. Duggan instructed by Baker & McKenzie LEGAL REPRESENTATIVES: DEFENDANT: Mr D. Pullinger instructed by Advance Lawyers Pty Limited

50122 of 2003 Sutherland Shire Council v Simon Shibli Nustas

JUDGMENT 1 Her Honour: The Defendant, Mr Nustas, is charged with an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that between 25 and 28 August 2003 he carried out development, being site works, excavations and the construction of access to land, on land known as 179 Fowler Road, Illawong ("the land") which development was not in accordance with the development consent granted by this Court on 25 July 2001 ("the Development Consent"). The particulars in the summons allege that four conditions of the Development Consent were breached by the Defendant as follows: In breach of s 76A(1)(b) of he EP&A Act, the Defendant:

(a) contrary to condition 48 of the Development Consent, failed to protect all trees during construction in accordance with the requirements set out in the Sutherland Shire Council Landscape Development Control Plan;

(b) contrary to condition 2 of the Development Consent, failed to implement the development substantially in accordance with the details and specifications set out in plan No. 151.99(H) by John G. Davies & Associates Pty Ltd, with particular regard to trees required to be preserved by those plans;

(c) contrary to condition 16 of the Development Consent, prior to the commencement of works or the issue of a construction certificate, failed to prepare and forward for Council approval, a Construction and Site Management Plan; and

(d) contrary to condition 17 of the Development Consent, prior to the commencement of works or the issue of a construction certificate, failed to prepare and forward for Council approval, a Soil and Water Management Plan and Statement.

2 The Defendant has pleaded guilty to the offence charged so the essential legal ingredients of the offence are taken to be proved. The maximum penalty prescribed for offences of this type is $1.1 million.

3 The Court has had the benefit of a Statement of Facts agreed by the parties. The relevant sections of that Statement of Facts are as follows: The Land is a strata subdivided lot at the rear of an allotment of Land which has a frontage to the Georges River. … Prior to the grant of Development Consent, 6 significant trees existed upon the Land together with a significant tree on Land adjoining to the North/West. The Development Consent permitted the removal of 2 trees from the Land. The development consent required the retention of the remaining 5 trees (including the one located on the adjoining land, being land not owned by the Defendant). The trees to be retained were all visible from the water and were intended to assist in the screening of the development upon completion. … The Defendant was not the applicant for the Development Consent.

After the grant of Development Consent the defendant became the owner of the Land. At all material times the Defendant was one of the owners of the Land. The Defendant is an excavator by trade and is the sole director of Nustas Excavations Pty Limited. … On or about 25-28 August 2003 the Defendant carried out development on the Land in reliance upon the Development Consent ("the Works").

The Works included (but were not limited to) the excavation of the Land, the construction of an access way, and the carrying out of general site works.

The Defendant was aware that a development consent had been granted to carry out works on the land and that it was likely that conditions had been imposed upon that consent, controlling the manner in which the development was to be carried out. The Defendant knew he was obliged to comply with any conditions upon the development consent. The Defendant was aware that failure to comply carried a criminal sanction with a potentially significant fine. Notwithstanding the Defendant's knowledge, the Defendant had not made himself aware of the terms of the Development Consent prior to commencing the Works. Further, up to and including the hearing of this matter on 17 August 2004, the Defendant had not read the Development Consent or otherwise made himself aware of its terms.

At the time the Defendant carried out the Works the Defendant had not complied with the requirements of conditions 16, 17 or 48 of the Development Consent.

As a consequence of the Works the trees that were to be retained were damaged. One of the trees damaged (Tree 2) was located on the adjoining Land, which Land was not owned by the Defendant.

As a consequence of the damage to the trees, the Prosecutor gave a Notice of Intention to issue an Order to the Defendants requiring 3 trees (being Trees 1, 3 and 4) to be removed. The Defendant removed the trees.

Notwithstanding the evidence that he has given to the Court in both affidavit form and his oral cross-examination, the Defendant does not contest the Prosecutor's allegations that the damage to Tree 1 was caused by excavation machinery driven by the Defendant carrying out the Works. The Defendant accepts that the tree protection provided for in condition 48 of the Development Consent could have been provided on site. Such protection would have been relatively easy and inexpensive to provide.

The Defendant accepts that if the tree protection required by condition 48 had been provided, the damage to the trees would not have occurred, and the trees could have been retained as required by the Development Consent. 4 Attachment "A" to the agreed Statement of Facts consists of a plan identifying the trees damaged by the Defendant, being trees 1, 2, 3, 4 and 5 referred to above. A copy of this plan forms Annexure "A" to this judgment.

The Prosecutor's Submissions 5 The Prosecutor argued that there was an aggravating circumstance under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 in that the injury caused by the offence was substantial in that: (a) three significant trees being Trees 1, 3 and 4 on site were so damaged that their later removal was necessary; and (b) two further trees were also damaged, being Trees 2 and 5, but were not required to be removed.

6 The Prosecutor submitted that the offence was a serious one as indicated by the maximum penalty which Parliament has seen fit to impose. While the Prosecutor accepted that the facts of each case are determinative of the penalty to be imposed the Prosecutor argued that the cases of Council of Camden v Tax [2004] NSWLEC 448 ("Camden v Tax") and Ku-ring-gai Council v Nettcorp Pty Limited [2003] NSWLEC 203 ("Nettcorp") provide guidance as to the appropriate level of penalty for offences of this type. Camden v Tax concerned the removal of 40 trees without any development consent being applied for at all. McClellan J imposed a penalty of $45,000, which penalty was reduced to $30,000 due to mitigating circumstances. In Nettcorp the defendant had deliberately removed nine trees in breach of the conditions of the relevant development consent. Cowdroy J imposed a penalty of $40,000 which was reduced to $35,000 due to an early plea of guilty being entered and the fact that the defendant was otherwise of good character.

7 The Prosecutor submitted that Camden v Tax and Nettcorp recognise the seriousness with which the community views tree removal and suggests that general deterrence is a relevant consideration on sentencing. In particular, the Prosecutor relied on the comments made by McClellan J in Camden v Tax where his Honour emphasised the need for the penalty imposed to achieve general deterrence at [28] to [29] as follows: The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. …

Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity to retain vegetation in many areas, but particularly rural areas, is achieved.

8 The Prosecutor argued that as the Defendant failed to inform himself of the conditions of consent in circumstances where: (a) the agreed Statement of Facts makes it clear he was aware that such conditions were likely to exist and was aware that breaching them was a criminal offence; and (b) no explanation has been provided for the Defendant's conduct and there has been no suggestion of his taking steps to reduce the likelihood of a recurrence; there is a need for the penalty imposed to contain an element of specific deterrence.

9 The Prosecutor accepted that the following mitigating circumstances were relevant under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 and should be taken into account in imposing a penalty: (a) that the Defendant entered a plea of guilty; (b) that it was accepted by the Prosecutor that the Defendant had no prior convictions; (c) that the Defendant cooperated with the Council by removing the trees the subject of the Notice of Intention to Issue an Order without waiting for the order to be issued; and (d) that the Defendant had agreed to the terms of an order requiring the replanting and maintenance of the trees removed.

10 In relation to the Defendant's plea of guilty the Prosecutor argued that the Defendant was not entitled to the full discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 as the plea of guilty was not entered until the first hearing date and was accordingly of little utilitarian value.

The Defendant's Submissions 11 The Defendant's counsel submitted on his behalf that there was clear inference of remorse on behalf of the Defendant given that he had pleaded guilty, cooperated with the Prosecutor in complying with the Notice of Intention to Issue an Order and readily agreed to the reparation orders proposed by the Prosecutor.

12 The Defendant argued that the circumstances of the offence differ from those considered in Camden v Tax and Nettcorp. Camden v Tax concerned the removal of 40 trees in circumstances where there was a failure to obtain development consent whereas here the Defendant is charged with non-compliance with consent conditions. While Nettcorp was concerned with a failure to comply with consent conditions, Cowdroy J found that the failure to comply was deliberate and here the Defendant's conduct was not a blatant or deliberate failure to comply but rather the result of negligence or carelessness on the Defendant's part and arose from his failure to familiarise himself with the relevant conditions of consent. Counsel for the Defendant also argued that the damage to the trees was not intentionally inflicted but was the result of the Defendant using inappropriately large excavators on what was a relatively small and difficult site. Further, the Defendant argued that this offence is less serious than those considered in Camden v Tax and Nettcorp as the trees damaged here were small in number and only three of those trees required removal.

13 The Defendant submitted that the utilitarian value of the plea should not be substantially reduced given the timing of the guilty plea as the timing of that plea was the result of inappropriate legal advice received by the Defendant for which the Defendant should not be penalised. Finding 14 The Prosecutor is seeking its costs, a monetary penalty and orders under s 126(3) of the EP&A Act.

Order Under S 126(3) of the EP&A Act 15 Section 126(3) of the EP&A Act provides that: Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person: (a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and (b) to provide security for the performance of any obligation imposed under paragraph (a).

16 The orders sought by the Prosecutor, which orders the Defendant consents to, are contained in exhibit H. One of these orders requires that the Defendant lodge a bond with the Prosecutor in the sum of $15,000. This bond is to be returned to the Defendant when the replacement trees reach a certain size, enabling them to be protected by the Prosecutor's Tree Protection Order.

Penalty 17 I consider it is necessary to impose a monetary penalty in addition to the orders sought in Exhibit H.

18 I consider that this is a reasonably serious matter. While I accept that the actions of the Defendant can be characterised as negligent and careless rather than deliberate it is nevertheless of substantial concern that a person engaged in carrying out development pursuant to a development consent failed to acquaint himself with the relevant conditions of consent for the development on which he was working. This seriousness is highlighted by the fact that the Defendant, when not working in a personal capacity, carries on a commercial excavation business.

19 While the bond to be provided as security under order 4 contained in Exhibit H is in the amount of $15,000 this bond will be returned to the Defendant, assuming that he carries out orders 1, 2 and 3. It is likely the bond will not be returned for some years. I therefore take into account the extent of the bond to be provided also in determining penalty.

20 I accept that the Defendant has demonstrated remorse and appears to have been essentially ill-advised, given the earlier conduct of these proceedings before me with the Defendant's lawyers changing just before the previous hearing resulting in a change of plea. I also note that the Prosecutor accepts that this is the Defendant's first offence.

21 I am of the view that the circumstances warrant a penalty of $15,000. I will allow a discount of $4,000 including a reduction for the utilitarian value of the plea of guilty in the amount of 15 per cent. This is ten per cent less than the 25 per cent maximum recognised in R v Thompson; R v Houlton (2000) 49 NSWLR 383 because of the relative lateness of that plea and the strength of the Prosecutor's case suggesting a conviction was likely if the matter had been contested.

22 In relation to the Prosecutor's costs, there is provision for these to be paid under s 253 of the Criminal Procedure Act 1986. This is adopted by s 41 of the Land and Environment Court Act 1979. I consider that it is appropriate that the Defendant pay the Prosecutor's costs.

23 I make the following orders:

The Defendant is convicted of the offence with which he is charged.
The Defendant is fined the sum of $11,000 to be paid to the Registrar of the Court within twenty-eight days.
I make the orders set out in Exhibit H as follows: (i) Within three months of the date of these orders plant three (3) trees to replace the trees removed as a consequence of the works the subject of the conviction ("the replacement trees"); (ii) The three replacement trees be of a 25 litre size of a quality as specified in the publication "NATSPEC Specifying Trees" by Ross Clark (National Specifications) at the time of planting and be selected from any of the following species: (a) Angphora costata (Sydney Red Gum) (b) Eucalyptus piperita (Sydney Peppermint); or (c) Eucalyptus tereticornis (Forest Red Gum) (iii) The Defendant shall do all things necessary to maintain the replacement trees until such time as they achieve a stem diameter at 500mm above ground level of 100mm. (iv) The Defendant shall lodge a bond with the Prosecutor in the amount of $15,000. The Prosecutor shall hold the bond until such time as the trees reach the size referred to herein. At any time during the currency of the bond the Prosecutor shall in its absolute discretion be entitled to apply the funds to replace or maintain the replacement trees. At the expiration of the bond the amount (if any) of the bond to be returned to the Defendant shall be reduced by any amount expended by the Prosecutor in accordance with this provision. 4. The Defendant is to pay the Prosecutor's costs, in addition to those costs which the Defendant was ordered to pay by this Court on 5 May 2004.

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